B. 1. Admissibility of the Petition Exhaustion of domestic remedies 47. Article 46(1)(a) of the American Convention provides that for a petition to be admitted it is required “that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.” Article 46(2) of the Convention recognizes three circumstances in which the rule of prior exhaustion of domestic remedies does not apply: a) when the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; b) when the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; and, c) when there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. 48. It should be noted that the rule of prior exhaustion of domestic remedies only applies to those that are adequate and effective to offer reparation to the violation alleged. The Inter-American Court of Human Rights has found that in accordance with generally recognized principles of international law, domestic remedies must be suitable to address the infringement of a legal right; and effective, in the sense of being capable of producing the result for which they were designed. 39 lthough the legal system of every country contains a series of remedies, the rule on their exhaustion does not require invocation of those that are inadequate, ineffective, or offer no likelihood of success. 40 For purposes of admissibility, the standard of analysis used for the prima facie assessment of the adequacy and effectiveness of the remedies under domestic law is not as high as the one required to determine whether a violation of Convention-protected rights has been committed. 41 49. In the instant case, the petitioners argue that the remedies provided under Chilean domestic law were exhausted by the ruling of the Chilean Supreme Court of May 31, 2004, which decided the disciplinary action and modified the judgments at first and second instance, awarding permanent custody of the girls to the father. 50. The State, for its part, argues that not all domestic remedies have been exhausted, since the “rule of formal res judicata [cosa juzgada formal],” 42 which applies to proceedings on family matters in Chile, permits the review of judicial decisions when the factual circumstances on which a particular decision was based have changed. Accordingly, the State holds that Ms. Atala has no legal impediment to file a new suit for custody of her daughters. In response, the petitioners contend that a new custody suit offers no possibilities of success in view of the precedent established in the judgment of the Supreme Court Justice of Chile in this case, as well as the lack of judicial independence with respect to the same court in the domestic jurisdiction in cases where the mother is homosexual. 51. A State that alleges non-exhaustion must indicate which domestic remedies should be exhausted and provide evidence of their effectiveness. In such cases, the petitioners have the procedural burden of demonstrating that said remedies were exhausted, or that one of the exceptions contained in Article 46(2) of the American Convention applies. 52. In the instant matter, the Chilean State merely holds that domestic remedies have yet to be fully exhausted because Ms. Atala is not legally impeded from again seeking custody of her daughters should the factual circumstances of the case have changed. However, the State does not present specific information from which to conclude that a new custody suit would be suitable 39 40 41 42 I/A Court H.R., Velásquez Rodríguez Case. Judgment of July 29, 1988, Series C No. 4, (1988), pars. 64-66. I/A Court H.R., Velásquez Rodríguez Case. Judgment of July 29, 1988, Series C No. 4, (1988), pars. 64, 66 and 68. Report 08/05, Petition 12.238, Miriam Larrea Pintado, Ecuador, February 23, 2005, par. 31. Note from the State received by the IACHR on December 19, 2007. 11